For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Proctor, J. Francis, J., concurring in result.
The sole question on this appeal is whether there is a right of recovery under the New Jersey Death Act, N.J.S. 2A:31-1 et seq., by the administrator ad prosequendum of a stillborn child who died as a result of injuries received while en ventre sa mere.
The facts are stipulated. On June 16, 1962 Mrs. Graf was injured in a collision between her husband's automobile, which she was driving, and defendants' vehicle. At that time she was seven months pregnant and as a result of the collision her unborn child suffered injuries from which it subsequently died and was stillborn on July 10, 1962. Mrs. Graf brought a negligence action to recover for the injuries she sustained. Mr. Graf sued per quod. In the third count of the complaint
he also sued as administrator ad prosequendum of the estate of the stillborn child, seeking recovery for the benefit of Mrs. Graf, himself, and their two sons under the Death Act. On defendants' motion for summary judgment as to the wrongful death count, the trial court held that as a matter of law no cause of action exists under the statute where the child is not born alive. From a final judgment dismissing the wrongful death count the plaintiffs appealed. R.R. 4:55-2. This Court certified the matter before argument in the Appellate Division. R.R. 1:2-1(d).
Our Death Act in pertinent part provides:
When the death of a person is caused by a wrongful act, neglect or default, such as would, if death had not ensued, have entitled the person injured to maintain an action for damages resulting from the injury, the person who would have been liable in damages for the injury if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured and although the death was caused under circumstances amounting in law to a crime."
In every action brought under the provisions of this chapter the jury may give such damages as they shall deem fair and just with reference to the pecuniary injuries resulting from such death to the persons entitled to any intestate personal property of the decedent."
The plaintiffs contend that an unborn child is a "person" within the meaning of that term as used in N.J.S. 2A:31-1. They rely on Smith v. Brennan, 31 N.J. 353 (1960), where this Court held that a child may recover for tortiously inflicted prenatal injuries. They argue that since a child could maintain such an action had it survived, the statute therefore creates in them the right to recover damages for its death. But this argument begs the question whether an unborn child is a person within the meaning of the statute.
The language in section 1 (N.J.S. 2A:31-1): "* * * such as would, if death had not ensued, have entitled the person injured to maintain an action for damages * * *." was a limitation intended to preclude recovery where the injured ...